Archive for: comparative advertising

On Augut 2013, Polish telecom Polkomtel sp. z o.o. started an advertising campaign of its mobile Internet access services. In a short movie, a girl named Basia is starting new life by dumping her boyfriend and moving to a new flat with an Internet access based on LTE technology. She mentions that her boyfriend had Internet access provided by Telekomunikacja Polska S.A. under the brand name Neostrada. She is very happy about the changes. The ad ends with the statement that Internet provided by Plus (brand name of Polkomtel) is faster from Neostrada. This comparison is based on the ranking provided by SpeedTest.pl of July 2013.

On 9 September 2013, Telekomunikacja Polska requested the District Court in Warsaw to issue a preliminary injuntion against Polkomtel, in order to prohibit acts of unfair competition and trade mark infringement of the word trade mark NEOSTRADA R-182762. Telekomunikacja noted that Polkomtel is one its major competitors on the Polish telecommunication market. The Company argued that Polkomtel infringed its trade mark rights by taking unfair advantage of reputation and distinctive character of the NEOSTRADA brand, and the advertising movie was comparative advertising contrary to good practices, and as such, should be deemed as unfair competition.

The District Court in Warsaw in its order of 23 September 2013 case file XVI GCo 204/13 dismissed the request. The Court held that premises to secure the claims are based on substantiation of claims, i.e. on providing prima facie evidence of the infringement and legitimate interest in granting the order. According to the Court, Telekomunikacja did not provide evidence on reputation of its trade mark and Polkomtel did not infringe the right of protection for NEOSTRADA, because this sign was only used to specify the service to which it relates. The word was used as a name for a given service, not as a trade mark. The Court noted that advertising that allows to identify, directly or indirectly, the competitor or products or services offered by the competitor, described as “comparative advertising”, should be deemed the act of unfair competition if it is contrary to good practices. However, the short movie clip published by Polkomtel is not in any way contrary to such practices, because it is not misleading and it does not affect market decisions as to the purchase of goods or services. The Court agreed with the decision of the President of the Office of Competition and Consumer Protection of 6 August 2009 case no. DDK 4/2009, according to which, advertising is deemed as misleading when a consumer gets false idea of ​​the goods or services, and misleading information influence the decision to purchase these products.

The concept of “average consumer” is present in intellectual property law and the law of unfair competition from a long time. Since the Dassonville case (C-8/74), the concept of the average consumer has been developed in the case law of the Court of Justice of the European Union, and appeared in the preamble to Directive 2005/29 on unfair commercial practices. According to the Polish Act of 23 August 2007 on combating unfair commercial practices, the average consumer is understood as a consumer who is adequately informed, attentive and careful. The assessment should be made with account taken of social, cultural, linguistic factors and the belonging of the particular consumer to a specific consumer group, which should be understood as a consumer group that can be unambiguously identified and is particularly receptive to the influence of a commercial practice or the product to which the commercial practice applies, due to its specific characteristics, such as age, physical or mental disability. However, it looks like some Polish courts do not think that an average Polish consumer fits the established rules and standards.

The Appeallate Court in Warsaw in its judgment of 13 January 2013 case file VI ACa 1069/12 held that the average Pole, which is also the average consumer, mainly due to social and cultural backgrounds, has a low legal awareness. This is the view shared by the Polish legal community. The standard of an average Polish consumer cannot in any way related to the standard of the average consumer in Western Europe, which for many decades is subjected to intensive consumer education.

The Act of 23 August 2007 on Combating Unfair Commercial Practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) published in Journal of Laws (Dziennik Ustaw) No. 171, item 1206, came into force on 21 December 2007. It implemented the Directive 2005/29 of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450, Directives 97/7, 98/27 and 2002/65 of the European Parliament and of the Council and Regulation 2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”).

Among others things, it defines in article 5(1) misleading commercial practices as actions connected with introduction of products into the market which may lead to mistake as regards to products, its packaging, trade marks, trade names or other signs capable of identifying entrepreneurs, particularly comparative advertising.

The Act also deals with crypto-advertising which is defined as using commentary content in mass-media sources to promote a product where the business/entrepreneur paid for such action but it is not clearly indicated in the content, images or sounds and it is not easily identified by the consumer.

The Act also covers aggressive commercial practices. It defines such actions as (i) onerous processes which are not connected with consumers’ actions or (ii) desisting from acting, i.e. inducing the purchase of products via phone, fax, electronic mail or other means used to communicate in distance.